Your question
How does a Testamentary trust in a last will work? Especially if there are minor children involved?
A testamentary trust is a trust created by a person’s last will. Under the will, property is bequeathed either to trustees, or to beneficiaries but under trustees’ control, and the trustees must administer, control or dispose of it as the will directs for the stated beneficiaries or purpose. 4
After death, the executor administers the deceased estate. Where the will appoints an administrator for property, the executor transfers movable property to that administrator and arranges endorsement of the will’s relevant terms against title deeds, mortgages or notarial bonds relating to immovable property. 2 The supplied provisions use “administrator” in this estate-administration context, while the Trust Administration Act defines a trust as property controlled by a trustee under the trust instrument. 2 4
For minor children, a will can specify that their inheritance is held and managed in the testamentary trust, for example until an age or event stated in the will. The trustee then deals with trust property under the will’s terms for the child’s benefit, rather than the child receiving and controlling the property personally. 4 A minor may be entitled to income, money or movable property under a will, and the applicable provisions contemplate an administrator receiving and administering these benefits for and on behalf of the minor. 3
A minor’s guardian may generally receive movable inherited property from an executor for the minor, but, unless the will expressly provides otherwise, money cannot be paid to the guardian and other movable property may be withheld if the Master directs, unless adequate security is furnished to protect the minor’s entitlement. The Master can also require the guardian to account for property or money received. 5
A testamentary trust and guardianship are different matters. A trust deals with ownership, control and use of inherited property; appointing a guardian concerns parental authority, custody or guardianship of the child. 4 A parent who was not the minor’s sole natural guardian immediately before death may not appoint a testamentary guardian unless that parent had been granted sole guardianship or the relevant exclusive parental powers by a court. The court may, after the testator’s death, make an order on guardianship or custody in the minor’s interests, even where a guardian or custodian was appointed in the will. 1
The precise duration of the trust, trustees’ powers, payments for maintenance or education, and when a child receives capital depend on the wording of the will. The supplied sources do not prescribe default ages, payment amounts, or standard trustee powers for a testamentary trust. 4
Verified sources
Where this answer comes from
Matrimonial Affairs Ordinance 25 of 1955
and [The Children’s Act 33 of 1960 has been replaced by the Child Care and Protection Act 3 of 2015.] (b) the parent of a minor to whom the sole guardianship of the minor has not been granted under subsection (1) or upon whom a children's court has not conferred the exclusive right to exercise any parental powers in regard to the minor shall not be entitled by testamentary disposition to appoint any person as the guardian of the minor unless such parent was the sole natural guardian immediately before his or her death. [subsection (3) substituted by Ord. 9 of 1967 (if it was ever brought into force) and substituted by Act 1 of 1996 (with amendment markings)] (4) [subsection (4) deleted by Ac...
Administration of Estates Act 66 of 1965
(1) If an administrator has been appointed to administer any property of a deceased person under his will (including in the case of a massed estate any property forming part of the share of the survivor or survivors of that estate which, according to a distribution account, is to be administered by such administrator), the executor shall - (a) deliver to the administrator such of the movable property as should, according to the distribution account, be delivered to him; (b) cause the terms of the will, or a reference thereto, in so far as they relate to the administration, to be endorsed against the title deeds of such of the property as is immovable, and against any mortgage or notarial bon...
Administration of Estates Act 66 of 1965
(2) and to the terms of the will or written instrument operating inter vivos, be entitled to receive from an administrator for and on behalf of the minor - (a) any income accruing to the minor from the property concerned; and (b) any money or other movable property to which the minor is entitled under the will or written instrument. (2) Sub-sections (2), (3), (4) and (5) of section forty -three shall mutatis mutandis apply with reference to any money or other movable property referred to in paragraph (b) of subsection (1). (3) Subject to the provisions of sub- section (1) and of the terms of the will or written instrument operating inter vivos, an administrator shall pay into the hands of th...
Trust Administration Act 11 of 2023
(1) A trust is an arrangement in terms of which ownership of property of a person is made over or bequeathed in terms of a trust instrument - (a) in whole or in part, to the trustee, to be administered and controlled, or disposed of according to the trust instrument for the benefit of the person or class of persons designated in the trust instrument or for the achievement of the object stated in the trust instrument; or (b) to the beneficiaries designated in the trust instrument, which property is placed under the control of the trustee, to be administered and controlled, or disposed of according to the provisions of the trust instrument - (i) for the benefit of the person or class of person...
Administration of Estates Act 66 of 1965
(2) and (3) and to the terms of the will (if any) of the deceased, be entitled to receive from the executor for and on behalf of the minor, any movable property to which the minor is, according to any distribution account in any deceased estate, entitled as an heir. (2) Subject to any express provision to the contrary in the will - (a) no sum of money shall be paid to any such guardian in terms of subsecti on (1); and (b) if the Master so directs, no other movable property s hall be delivered to any such guardian under that subsection, unless payment of such sum of money or payment, in default to delivery, of the value of such movable property according to a valuation by an appraiser or any...
Income Tax Act 24 of 1981
“trustee” in addition to every person appointed or constituted as such by act of parties, by will, by order or declaration of court or by operation of law, includes an executor or administrator, tutor or curator, and any person having the administration or control of any property subject to a trust, usufruct, fidei-commissum or other limited interest, or acting in any fiduciary capacity or having, either in a private or an official capacity, the possession, direction, control or management of any property of any person under legal disability;